Caputo v. Taylor, SS-404

• Decision Date: 04 September 1981
• Docket Number: No. SS-404,SS-404
• Citation: 403 So.2d 551
• Parties: Sue G. CAPUTO and Warren J. Caputo, her husband, Appellants, v. J. Champneys TAYLOR, Appellee.
• Court: Florida District Court of Appeals

Page 551

403 So.2d 551

Sue G. CAPUTO and Warren J. Caputo, her husband, Appellants, v. J. Champneys TAYLOR, Appellee.

No. SS-404.

District Court of Appeal of Florida, First District.

Sept. 4, 1981.

Rehearing Denied Oct. 2, 1981.

Thomas M. Baumer and Dana G. Bradford, II, of Mahoney, Hadlow & Adams, Jacksonville, for appellants.

James E. Cobb and Mary Bland Love, of Matthews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.

BOOTH, Judge.

This cause is before us on appeal from a judgment entered on a jury verdict for the defendant in a suit for personal injury allegedly resulting from the negligence of the defendant in failing to diagnose and treat cancer. On appeal to this court, plaintiffs contend that the trial court erred in failing to give certain requested jury instructions and in refusing to allow an expert witness, Dr. John Feegel, to testify concerning the standard of care applicable in the case.

The facts are that, in August, 1976, plaintiff Sue Caputo had a scheduled appointment with defendant Taylor for a gynecological examination. Mrs. Caputo testified that, at the time of the examination, she advised defendant of the presence of a lump or growth in her right breast and requested that he examine it. She testified that defendant did examine the growth in 1976 but specifically advised her that it was not malignant and no treatment was needed. Mrs. Caputo further testified that, at her next annual examination on September 19, 1977, she again advised defendant of the growth, that defendant examined it, but that this time he made arrangements for further testing and referred her to a surgeon. The tests determined that the growth was malignant and that it had metastasized or spread to the lymphatic system. A modified radical mastectomy was performed on September 26, 1977, followed by radiation therapy and surgical procedure for breast reconstruction.

The complaint alleged negligence of the physician in (1) failing to diagnose the malignancy; (2) failing to recommend or perform further tests to determine the nature of the growth or to follow its development; and (3) failing to treat so as to remove or arrest spread of the growth. The complaint alleged the following:

9. As a direct and proximate result of the defendant's negligence, plaintiff Sue G. Caputo took no further action with respect to the growth until her subsequent visit to the defendant on September 19, 1977 for her annual gynecological examination, as a result of which the malignant growth was permitted to further spread unchecked throughout the breast area, and into adjacent tissue in the chest area, and in addition into the lymphatic system, necessitating the extensive surgical procedures for its treatment and removal occasioned by such spread.

10. As a result of the defendant's negligence, and the consequences thereof, plaintiff, Sue G. Caputo suffered extensive pain, incurred medical expense in the treatment of the illnesses and/or injuries resulting therefrom, suffered physical handicap and her working ability was impaired; the injuries are either permanent or continuing in nature and plaintiff Sue G. Caputo will suffer the losses and impairment in the future.

In addition, plaintiff's counsel was permitted to argue without objection that plaintiff suffered "loss of chance" for early treatment and reduced life expectancy.

Defendant denied that plaintiff had advised him of any abnormality with respect to her breast in August, 1976, and denied that any growth or lump was present in 1976. He relied on his patient record of the 1976 examination. Defendant's testimony was supported by two nurses, one of whom was present during Mrs. Caputo's examination. Both nurses testified Mrs. Caputo told them in September of 1977 that she had had the lump in her breast for three to four months. Further, the testimony of the nurse of Dr. Williams, the surgeon who diagnosed plaintiff's malignancy in 1977, as to her conversation with Mrs. Caputo, would support a jury finding that, although plaintiff discovered the lump in 1976, she failed to tell her doctor for over a year because she feared possible breast removal and resulting detriment to her marriage.

Mrs. Caputo's version of the facts as to existence of the lump in 1976 was supported by the testimony of her husband, her twin sister and her husband's former wife, all of whom stated that they felt the lump, approximately one inch long, in 1976 prior to her visit to the doctor. The doctors who examined Mrs. Caputo a year later in 1977 testified the lump was one inch (2.5 centimeters) long.

The case was tried to the jury in September, 1979. Plaintiff's expert and her operating physician, Dr. Phillips, testified that there was no way to tell within reasonable medical probability whether the malignancy he encountered in the operation of 1977 had been present for one year prior to the operation; that he could not tell at what point in time the cancer cells spread from the breast area to the lymph nodes; and that, although the growth had probably been malignant from the beginning, there was no way to determine at what point it metastasized since what he found in the 1977 operation was consistent with a growth that had started either three months before the operation or a year before the operation. This testimony was essentially the same as that given by all other experts who testified. Dr. Williams, a surgeon specializing in cancer surgery, testified for the plaintiff that the lump "could have been there 10 years; it could...